Surgical Errors & Medical Malpractice in Pennsylvania


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When Does a Surgical Mistake Constitute Medical Malpractice in Pennsylvania?

Surgical mistakes do not always constitute actionable medical malpractice in Pennsylvania. Surgeons, like everyone else, are allowed to make mistakes. The most important question in determining whether surgical error or mistake is actionable under Pennsylvania medical malpractice law is what a similarly situated surgeon would have done under the same circumstances. Note that the inquiry is what another surgeon would have done, not simply another doctor, like a family doctor.

Medical Malpractice in General

Under Pennsylvania law, professional negligence or medical malpractice is the negligent, careless, or unskilled performance by a doctor, surgeon or other medical professional of the duties imposed on them by the professional relationship with the patient. A doctor commits negligence when he or she shows lack of proper care and skill in the performance of a professional act.

Surgical Mistake & Medical Malpractice

In addition, specialists are required to have the same knowledge and skill and use the same care normally used in the medical profession. A doctor whose conduct falls below the standard of care is negligent. In the case of a specialist, such as an orthopedic surgeon, a doctor who professes to be a specialist in a particular field of medicine must have the same knowledge and skill and use the same care as others in that same medical specialty. A specialist whose conduct does not meet this professional standard of care is negligent under Pennsylvania medical malpractice law.

Below are two examples which demonstrate the importance of analyzing surgical mistakes in the context of what other similarly situated surgeons would have done.

Example 1: a doctor performs a standard abdominal surgery, such as an appendectomy. The doctor accidentally nicks the large intestine. The patient develops sepsis when the contents of the large intestine empty into the abdominal cavity and into the bloodstream. The patient dies a few days after the surgery.

Example 2: a doctor performs an open reduction internal fixation (ORIF) with placement of two surgical screws. One of the screws is placed incorrectly and the patient must undergo a second surgery to remove the screw.

In the first example, the mistake is likely actionable. Post-op infection protocol was probably breached, hence why the patient died. A medical expert would be necessary to discuss how the surgeon’s acts/inactions led to the death.

In the second example, the mistake is not clearly actionable. The surgeon may have relied on the screw manufacturer’s instructions. In this example, a medical expert is needed to indicate what a similarly situated surgeon would have done.

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